William & Mary Lee Professor of Law William W. Van Alstyne, one of the nation’s foremost constitutional law scholars, has signed two collaborative briefs written with other legal scholars and former government officials. The first is for a case pending in the Sixth Circuit Court of Appeals and concerns President Bush’s authorization of the domestic spying program. The second is for a case pending in the Fourth Circuit Court of Appeals and addresses joint presidential and congressional efforts to suspend the writ of habeas corpus.

On Jan. 9, 2006, Van Alstyne co-signed a letter to Congress expressing concern about the National Security Agency’s domestic spying program, a program secretly authorized by the President that allowed the agency to conduct electronic surveillance without warrants of anyone in the United States. Co-signers of the letter included a former director of the FBI, a former acting solicitor general, two lawyers who worked in the executive branch and the deans or former deans of Yale, Stanford and the University of Chicago law schools. The letter stated that the Bush administration should have pursued a legislative amendment to the Foreign Intelligence Surveillance Act (FISA) before moving forward with the spying program.

Shortly afterward, Van Alstyne and the group wrote a second letter to Congress, dated Feb. 2, 2006, in response to a Jan. 19 memoradum issued by the Justice Department.

Van Alstyne joined with the same group that wrote the letters to file a brief in a case currently pending in the Sixth Circuit Court of Appeals. Van Alstyne said he was motivated to collaborate on the brief because he has “a genuine concern as to whether or not the program was permitted under the Constitution and was inconsistent with certain acts of Congress.”

In this Sixth Circuit case, the government is appealing a federal district court decision holding, as the letters to Congress that Van Alstyne co-signed suggested, that the executive order authorizing domestic surveillance without going through the court for a warrant was invalid. The case was argued earlier this year and the parties are awaiting the court’s decision.

In a separate case, Van Alstyne joined in a brief with colleagues from Harvard, Duke, Stanford, and the University of Virginia addressing efforts to suspend the writ of habeas corpus that people who are being held in custody can invoke when they want the courts to determine if there is any legitimate reason for them to be held. The jointly-authored brief was filed with the Fourth Circuit Court of Appeals in early 2007.

In examining the extent to which Congress can make habeas corpus unavailable, Van Alstyne said, “Habeas corpus is a fundamental part of the Constitution. This is a very important issue of American justice and human rights.” The filed brief concludes that Congress has not removed authority of courts to hear these types of cases, as the President has suggested, and that they should be heard.